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Widow’s right to maintenance – charge on estate-widow’s right to claim a lien on her husband’s property for maintenance and to residence as against creditors and in lieu of dower.

Rawalpindi District.

“The general custom established by the answer to the question is that in case there is no male issue the widow takes the inheritance for life, after which it passes to the near male kindred ; when there is male issue the widow shares for life equally with her sons. The Sattis, Khetwals, Gakhars, Khattars, Moghals, Jasgams, Rajputs. Awans, Qureshis, Jats, Gujars, Malliars and Hindus and Bhabras all state this to be a thoroughly well-established custom, and there is no doubt that this is so.

The Dhunds and Dhanials modify it in so far that they state that in presence of male issue the widow is entitled either to a share with her sons, or to have a portion of land set apart for her maintenance. The Sayyads have no well-established custom on the point, but generally follow the same practice as the Sattis or most of the tribes.

In all tribes the widow of a sonless proprietor takes inheritance for life. In the presence of male issue the widow has different rights in different tribes.

Awans everywhere state that in the presence of sons a widow has no right to share. The sons maintain her.

Dhunds reply, that if the widow has sons she gets nothing, if she has only step-sons she will succeed with them. The other Murree tribes, Dhanial, Khetwal and Satti, reply that a widow succeeds equally with sons, whether her own sons or step-sons. The Dhanials of Rawalpindi, however, state that in presence of sons the widow gets no share. It would appear that the Dhanials of Rawalpindi, a detached portion of the tribe, have a different custom from their brethren in Murree Tahsil. Among janjuas it is undoubted that the replies allowing the widow to succeed in the presence of sons correctly represent the custom.

Gakhars in Kahuta and Gujar Khan are agreed that a widow in the presence of male issue will take the share of a son. In Rawalpindi the reply is that she will receive only maintenance. The general custom, however, appears to be that in all tahsils a widow succeeds along with her sons, but it is not the practice to have her name entered in the revenue papers.

In Rawalpindi Tahsil Rajputs state that although in one or two cases the widow has take a share with sons, by custom she takes only maintenance ; Gujars, Hindus and Khattars allow the widow only maintenance.

In all other tahsils replies by Manhas, Pakhral, Bhatti and Rupial Rajputs, Moghals, Jasgams, Gujars and Brahmans is that the widow succeeds to a share in the presence of male issue.

Apparently the custom of all tribes with the exception of Awans, and to some extent Dhunds in Murree, Gujar Khan and Kahuta Tahsils is to allow a widow a share in presence of male issue. In Rawalpindi Tahsil the custom is doubtful in the case of all tribes, the widow being in many, if not the majority of, cases allowed only maintenance” (1).

Widow v. step-sons.

“The reply of the Dhunds, Sattis, Dhanials, Khelwals, Moghals, Jasgams and Qureshis is that a barren widow would take half the inheritance for life, the widow issue and her children taking the other half on the chundavand system. The Gakhars say that each widow and each of the sons would share alike, and Rajputs, Jasgams, Jats, Gujars, Malliars and Hindus, except in Kahuta, follow the same custom as the Gakhars. As regards tribes mentioned above the existence of the custom spoken to by them, is better established then in the case of those now to be noticed.

Khattars and Awans state that usually barren widows only receive maintenance, but in some cases they have received shares, and instances of both are given. No settled custom is therefore established in this case. Saids, in general, follow the same custom as Gakhars, but the Sayyads of Rawalpindi Tahsil say that barren widows are only entitled to maintenance, and instances are given on each side among the Pathans, Khatris and Sayyads. Custom on this point is unsettled, and, in my opinion, no custom having the force of law can be held to have been established. As the question is a doubtful one, I have cited many instances, and the information here collected will, I hope, be useful to the Courts should occasion occur.

The reply of the hill tribes is, of course, affected by the change from the chundavand to the pagvand system of inheritance. Among all these tribes a widow, when allowed to succeed, takes the same share as a son, shares being distributed per capita. The Dhunds say that a barren widow will take equally with sons ; a widow with sons will get nothing, being maintained by her sons. The instances collected are in consonance with this reply. Sattis, Dhanials, and Khetwals declare their custom to be the same as that of the widow with sons has been recorded in the last question. The right of the barren widow at least6 is well-established and not disputed among these tribes.

Awans in all tahsils reply that the barren widow will take only maintenance. The instances which have been collected show the barren widow as sometimes getting a share, but in all the cases referred to a Civil Court only maintenance appears to have been given. Tribal feeling and the general trend of tribal custom among the Awans are certainly against a barren widow being a shareholder. The Awans of this district are exceedingly reluctant to allow females proprietary rights in land, and the unanimous replies of the tribesmen to this question probably represent the custom as it actually exista.

Gakhars, Sayyads, Janjuas, Moghals and Qureshis everywhere admit the barren widow to a full share in presence of male issue, pagvand being the rule. The custom appears to be well-established, and in all tahsils, except perhaps Rawalpindi in the case of Moghals and Qureshis, is rigidly observed.

For the other tribes no certain custom appears to exist, and I content myself with recording the replies given.

In Rawalpindi and Gujar Khan Tahsils, Gujars, Rajputs, Pakhral, Manhas and Bhatti state that a barren widow will get a full share, but Hindu allow only maintenance.

In Kahuta, Manhas, Pakhral, Bhangial, Bhatti Rajputs and Gujars all ow a full share. The Suddans have no fixed custom either way. Chauhan Rajputs allow only maintenance.

Jasgams reply that a barren widow will take a full share according to the chundavand rule” (1).

C. A. 341 of 1880–Mughals. A widow is entitled to maintenance only in the presence of children of another widow.

59 P. R. 1894 –Awanw. A childless widow in the presence of children of another wodow gets only maintenance.

30 P. R. 1905 –Chauhan Rajputs.

49 P. R. 1910 –Mughals of Mauza Badia Qudir Bakhsh, Rawalpindi Tahsil. By custom a childless widow is entitled to a certain portion of her husband’s estate for life by way of maintenance in the presence of her husband’s son by another wife.

A. I. R. 1935 Lah. 294 –There is no custom among Sasral Rajputs of Rawalpindi Tahsil by which a widow is entitled to inherit to the property of the deceased along with her sons.

Rohtak District.

“Jats throughout, Ahirs, Brahmans throughout, Hindu and Muhammadan Rajputs throughout, and Pathans of Gohana, say that in the presence of a son or sons no other relation can receive anything.

Pathans and Sheikhs of Jhajjar say that the first change is the widow’s mehr, and that has to be satisfied before the sons inherit. If they discharge that they inherit all, or if they charge it on the estate they inherit the residence; but they say that in fact the widow seldom claims mehr but looks for maintenance from the estate at the hands of sons. Pathans of Guriani Zail and Biloches say that a widow cannot claim the mehr from sons, but can look for maintenance from the estate.

Note.–But where there are more than one widow amongst tribes following pagribat, a childless widow will get a share in default of the sons she has not borne. Where chundabat prevails she will of course get her share: (2).

Shahpur District.

“All tribes, except a few Tiwanas and Biloches.

(a) A widow, having a son, takes no share.

Biloches of Sahiwal and Tiwanas of family and property.

A sonless widow gets only maintenance in any case.

Awans.

(b) If the deceased have left a sonless widow, besides a son or sons by another

wife, the sonless widow gets no fixed share of the land, but is generally given separate possession of enough land for her maintenance with regard to the position of the family.

Condals, Rahjas, Musalmans generally.

The same, except that the sonless widow, in presence of sons, gets a reasonable amount, either of land or garin sufficient for her maintenance.

Khokhars Hindus.

The, same except that the sonless widow, in presence of sons, gets only enough grain, etc; for her maintenance, and is not given a share of the land” (1).

“Awans Gondal, Khokhars and Musalmans generally.

If there be no male lineal descendants through males, the widow of widows inherit the whole of the property of the deceased, each widow taking an equal share; but if there be a widow, and unmarried daughters by another wife deceased, the daughters by the deceased wife succeed to their mother’s share till marriage.

Note. –Several families of position and property, such as the Biloches of Sahiwal, the Tiwana Chiefs and the Sayyads of Jahania Shah and Alipur, say that a sonless widow gets only maintenance and does not succeed to her husband’s property. Malik Fateh Sher Khan wished that the Tiwana widow should hold full possession of the whole property, and the other widows get maintenance only. Among the Awans a sonless mother counts as a widow, and takes a share along with the widow of the deceased.

Hindus.

If there be no lineal descendants through males, the widow or widows inherit the whole of the property of the deceaswd, provided he was separated from the rest of his family, but if he was living jointly with his agnate relatives, they inherit his property, and his widow is entitled to maintenance only” (2).

368

A .I. R. 1927 Lah. 329 – The estate of a sonless proprietor would devolve on the

= 8 Lah. 139 widow after his death. If she re-marries or dies, then

= 101 I. C. 635 the estate will pass on to the mother of the deceased for life and not to the deceased’s collaterals.

Sialkot District.

“Among Jats and Rajputs, if a proprietor dies intestate the inheritance devolves upon male descendants; in their absence upon the widow or widows, (if more than one) in equal shares, If one widow has issue and the other is childless the latter sometimes gets only maintenance, sometimes a share equal to a son’s and, sometimes a share according to the chundavand rule…………. Tribes other than Jats and Rajputs state that they follow a similar custom” (3).

61 I. C. 893 –Jats of Raya Tahsil. A widow succeeds to her husband’s estate with his son from another wife.

(24) Widow’s right to maintenance-charge on estate-widow’s right to claim a lien on her husband’s property for maintenance and to residence as against creditors and in lieu of dower.

Under the Hindu Law the right of a widow to maintenance is not a charge on the husband’s estate unless it has been fixed as a charge thereon by decree or by agreement. (1).

The right of a Hindu widow to residence in the ancestral dwelling house, as well as to maintenance out of the family property, or the self-acquired property of her husband, is not a charge on such property, and, as a general rule, takes precedence over debts contracted by the deceased in the ordinary way of business or living (2).

Again, it has been held under the Hindu Law that a widow’s right to maintenance is liable to be defeated by a transfer of the husband’s property to a bona fide purchaser for value without notice of the widow’s claim for maintenance. It is also liable to be defeated by a transfer to a purchaser for value even with notice of the claim, unless the transfer was made with the intention of defeating the widow’s right and the purchaser had notice of such intention. In fact, a widow’s right to receive maintenance is one of an indefinite character which, unless made a charge upon the property, is enforceable only like any other liability in respect of which no charge already exists. But, where maintenance has been made a charge upon the property as it has been agreed that it will be a charge on certain property then the transferee must hold it subject to that charge (3).

In Bhagat Ram v. Mst. Sahib Devi (4) a Hindu died leaving the plaintiff, his widow and a minot son who alienated almost all his father’s properties. The two shops concerned were purchased by the defendants. The plaintiff sued the defendants for recovery of maintenance and declaration of a charge on the two shops. The lower Courts found that the property left by the deceased was only limited; that the son incurred debts for immoral purposes; that at the time of purchasing the shops the vendees were warned that the widow had set up a claim for maintenance; and that therefore they are not bona fide purchasers. It was also found that the properties were self-acquired properties of the deceased. Held, the sale was not justifiable, as it had unfairly prejudiced the plaintiff’s rights and, therefore, the defendants were not bona fide purchasers.

In an earlier ruling under the Hindu Law, reported as Hardyal v. Mst. Radhan (5) it has been held that a Hindu widow’s maintenance is not a mere personal right against the heirs of the deceased husband, but a charge on the ancestral property; and it defeats the right of a mortgagee of such property, when there is no other ancestral property which can be charged with the maintenance. This case was referred to in Banki Rai v. Mst. Bilaso (6) wherein it was held that “the famale heirs of a Hindu may be entitled to maintenaqnce as against ordinary creditors who wish to attach and sell off the property, but they cannot demand that bond fide transactions carried out in his life-time by the owner of property shall be virtually cancelled at the expense of those who dealt openly with the owner.”

Where a Muhammadan widow with a claim for dower was found in possession of land belonging to her husband’s estate, she could not be ejected till her dower was paid, and her lien must stand good against all heirs though not necessarily against creditors. Accordingly, no partition of the estate of the deceased could be allowed till dower debt had been satisfied (1).

Where husband’s property is attached under Ss. 87 and 88, Criminal Procedure Code, the wive’s right of maintenance will be defeated by such attachment as such right of maintenance is only a personal obligation. Mst. Durgi v. Secretary of State (A. I. R. 1929 Lah. 528).

As regards widow’s right of residence, the view in the Punjab under the Hindu Law is that where an ancestral family dwelling house is alienated for bona fide family debts, incurred by husband in the ordinary way of business and living, the alienation is not subject to the wife’s right of residence as wife or widow, she not being a creditor on account of her maintenance or right of residence (2). She must prove, when a house is attached, that there is no other suitable house for residence (3). In Mst. Karam Kaur v. Mst. Kishen Devi (4) after the death of a certain Hindu, his family dwelling house was sold in execution of a decree against him based on a mortgage of immoveable property, including the said house. Held, that the said house having been sold in execution of a decree based on a mortgage executed by the widow’s late husband, who was presumably able and willing to maintain her in another house, and the mortgage consideration not having been shown to be immoral or unjustifiable, the widow was not entitled to continue to reside in it after its purchase, even though the purchaser had notice of her alleged claim. A wife cannot, in the interests of her maintenance, restrain her husband alienating where there is no immoral consideration (5). In 144 P. R. 1884 it was held that under Hindu Law, where the sole house property of a deceased Hindu was attached for debt due by deceased, the property could only be sold subject to the widow’s right of residence, the Court determining what part of the premises should be reserved for that purpose.

According to the Hindu Law a widow is not bound to reside with her husband’s family and she does not forfeit her right to maintenance out of her husband’s estate by going to reside elsewhere. All that is required of her is that she must not leave her husband’s house for improper or unchaste purposes and she is entitled to separate maintenance unless she is guilty of unchastity or other improper practices after she leaves that residence. The same rule governs the agricultural classes of the province unless a custom to the contrary is established (6).

As has already been observed, both under Hindu Law and the Punjab Customary Law, the respective rights of a widow in possession of her husband’s estate and her reversioners are analogous (1), and therefore the principles explained above seem to apply to a widow under the Punjab Custom, although there is hardly any direct authority covering or explaining the above principles.

(25) Widow’s right to resign her claim to possession and take maintenance-acceleration of succession by surrender.

There are strong analogies between the estate of a widow under Customary Law and her estate under Hindu Law. Under both laws she holds for life for the purpose of the maintenance with certain powers of disposition necessarily incident to her position. She is, at least in Customary Law, in no sense a co-sharer, and on her death the succession is not to her but to her husband. In fact her estate is one interposed for a limited purpose between that of her husband and the next heir. She might choose not to take possession of her husband’s property for her maintenance preferring to take it from his male heir, and in such a case the latter at once becomes vested with the right of ownership. And the same result would follow if she, after taking possession, elects to follow such a course (2).

A widow is competent to relinquish her life-estate, and thereby accelerate the succession of the reversioners to the property of her deceased husband, but it is essential that she should give up her whole estate, and not merely a portion of it (3).

(See for full discussion notes under Chapter on “Widow’s Right of Transfer”)

(26) Maintenance to be fixed after considering the position of the family-land allotted in lieu of maintenance.

Where only maintenance is allowed to a widow, it is not an unusual practice to assign to her this maintenance in the form of a portion of her husband’s land, which is made over to her for her own use upon the usual tenure of a widow, the extent of such portion being determined with reference to the circumstances which are ordinarily taken into consideration in determining the amount of maintenance to be assigned to a widow from her husband’s estate, as for instance the size of the estate, the number of persons to be provided for, the fair wants of a person in her position and rank of life, etc. (4).

In Sher Khan v. Mst. Bivi (5), a case in which the parties were Chohan Rajputs of Rawalpindi District, Chatterji, J. observed –“But the evidence appears to show that in cases like the present the general rule is to allot maintenance to the widow, particularly if she happens to be a step-mother of the sons in the shape of a quantity of her husband’s land sufficient for the purpose instead of leaving her dependant upon a cash or grain payment by the latter. In this way the independence and dignity of the widow is safeguarded, her maintenance secured, and litigation for its sake avoided. In the great majority of instances land has been awarded to the widow without dispute whenever she has asked for maintenance in that form; where the estate is small, she has often been able to get land equal in quantity to that inherited by a son and this may have led to the notion, which some of the Courts and many of the witnesses appear to have, that custom gives her a share equal to that of a son; but where the land is considerable, she does not ordinarily get an equal share with the son, though from good-will or ignorance of rights equality is sometimes found even in such cases. The true custom appears to be that a widow is entitled to a definite portion of her husband’s land to be made over to her for life for her maintenance which may be equal to the share of a son when her reasonable requirements cannot be otherwise provided for.” In Mst. Roshnai Khanam v. Nawab Khan (1) also it was similarly observed- ‘The estate is a considerable one, and the ladies of the family should be maintained in fitting circumstances; it is not sufficient to provide them simply with the bare necessaries of life. On the other hand we must not burden the estate too heavily.”

22. Mother’s life-estate.

In default of male lineal descendants and of a widow, the mother of the deceased succeeds to a life interest, provided she has not remarried.

(27) Mother’s life-estate – effect of re-marriage unchastity.

Custom in the Punjab generally recognizes the mother’s right of succession in preference to that of the male collaterals or married daughters, in default of male lineal descendants and of a widow (2). In the absence of male issue, the widow of a deceased proprietor succeeds to a life-estate in his property, and on her death or re-marriage, his mother comes in before the collaterals and takes a life-interest in the property (3).

The general principle governing succession to an estate among agriculturists in the Punjab is that where the male line of descendants dies out it is treated as never having existed, so that succession is then reckoned with reference to the last male owner who dies leaving descendants (4). A mother as a rule in the Punjab, where custom is the rule of decision, only succeeds when there are no sons and she succeeds not as the mother of the sons but as the widow of her deceased husband. And when there are sons they exclude the mother and if a son dies he is succeeded by his brother, but when the last surviving son dies without issue, then the mother succeeds in her capacity as widow of her deceased husband (5).

A mother succeeds as widow of her deceased husband and not as mother of her son. A widow who has remarried before the death of her son is no longer the widow of her deceased husband and she is not an heir entitled to succeed upon the death of her son (1).

Where R. S., a Sandhu Jat proprietor of Ferozepur District, died leaving two sons, who died without issue and the widow of R. S. (and mother of his son P. S.) claimed to hold the deceased’s estate with the usual customary interest of a female against the distant collateral heirs of P. S. and the defendants pleaded that by her re-marriage, the widow has lost all claim to the estate of R. S., held, by majority, that the question of widow’s succession to the deceased’s ancestral estate was to be decided according to custom under S. 5 (CI. A) of the Punjab Laws Act, 1872, and was not affected by the provisions of Act XV of 1856, and that according to custom she had not the right claimed (2). As observed by Sir Meredyth Plowden in the above ruling (page 258) –“If her title to possession is really founded on her relation to her deceased son, the objection of remarriage is irrelevant, for she does not cease upon remarriage to be his mother. But if it is founded on her relation to her husband the objection is weighty, for upon re-marriage she ceases to be regarded by custom as his widow or as a member of his family, and is regarded as a member of the family of her new husband (3).

Where on the death of a sonless Dhillon Jat proprietor, of Hoshiarpur District, his estate was first recorded in the name of his widow and then, in the name of a posthumous son and on the latter’s death the mutation was again effected in favour of the widow and she having subsequently re-married and the collaterals of her deceased husband brought a suit for possession alleging that the widow had forfeited her life-estate by re-marriage the Divisional Bench referred to a Full Bench the following question:-

“Whether by custom a woman, who has succeeded to her husband’s estate after the death of her son loses her right to retain the estate on her subsequently re-marrying ?”

The Full Bench held that no answer could be given to that question for the simple reason that custom varied from tribe to tribe and from one locality to another and that decision must be arrived at in each particular suit on its own merits.

The Division Bench held (a) that the burden of proving that the defendant succeeded as mother and not as her husband’s widow was rightly placed on the defendant and that she had failed to discharge the same; (b) that when on the death of the posthumous son the defendant regained possession as her husband’s widow she could not claim to retain possession after she had remarried. Accordingly that succession opened out to the reversioners (4).

It was held in Mst. Jai Devi v. Harnam Singh (5) that among Sus Jats of Hoshiarpur by custom a mother is excluded from succession to her son’s estate when she has contracted a second marriage before her son’s death. Similarly, in Harnam Singh v. Mst. Mohan Kaur (1), a case relating to Hindu Sikh Jats of Ferozepur District, it has been held that a widow having remarried her husband’s brother no longer remained the widow of her first husband and consequently after the death without issue of her husband’s son she could not succeed to a life-interest in her deceased husband’s estate in preference to his brother who was the next heir.

But in the presence of the widow of the deceased owner, his mother is only entitled to maintenance (2). A daughter is not preferred to the mother of the last male holder (3).

Mother was given a life-estate in the following cases: -

34 P. R. 1880 – Arains of Karnal District.

95 P. R. 1882 – Gujars of Gujarat District, in the presence of distant collaterals.

49 P. R. 1883 – Chawar Jats, District Gurdaspur.

79 P. R. 1889 – Agriculturist Rajputs of Karnal District, for life in presence of other son’s sons and grandsons.

119 P. R. 1891 – Kasais of Ambala city.

288 P. W. R. 1912 – Pathans of Mianwali District, in presence of a sister.

23 P. R. 1913 – Pathans of Mianwali District, in default of male lineal descendants and a widow for life.

69 I. C. 136 – Weavers, Jullundur District. A daughter is not entitled to succeed to the property of her father in preference to his mother.

A. I. R. 1923 Lah. 476 – Jats, Amritsar District.

A. I. R. 1927 Lah. 329 – Gondals of Tahsil Bhalwal, District Shahpur. Mother Preferred to collaterals.

Mother was refused life-estate in –

89 P. R. 1886 – Kasuria Pathans of Bannu, in presence of husband’s first cousin.

(28) Mother is usually excluded by the widow.

135 P. R. 1884 – Gharbari Gosains of Tilok Nath Temple, Kangra.

41 P. R. 1895 –Sayyads Bokhari of Jhang, though she is entitled to maintenance.

21 P. W. R. 1911 – Muhammadan Rajputs of Hoshiarpur District.

The mother’s right under Customary Law to temporary possession of her deceased son’s landed property is similar to that of a widow, and is a mere development of her original right to maintenance (4). Her estate is, as noticed above, for life or till remarriage. In the case of Gujars of Gujrat District, it has, however, been held that re-marriage did not involve furfeiture (5).

A widow who succeeds her son is regarded as having succeeded, not to her son’s but to her husband’s estate. She is therefore as much liable to forfeit her life-estate on account of unchastity as a widow succeeding to a life-estate.

(See notes on pages 382 to 384).

Among Ahirs of District Gurgaon, a mother who is unchaste is deprived of her right to succeed to her deceased son’s estate.

As in the case of a widow, the unchastity of the widowed mother of a deceased proprietor, who is in possession of his estate on a life-tenure, does not work a forfeiture of her life-interest.

A died leaving a son B and a widow C. C later on married another person by karewa. B who had succeeded a died without leaving any issue or a widow. His collaterals thereupon took possession of the estate and instituted a declaratory suit that C had no right to succeed, C having remarried by Karewa. Held, it was for C to prove special custom that she did not lose her right to property in dispute. Under the custom governing the parties the effect of C’s re-marriage was to divest her of all rights in her husband’s estate. Hindu Widows Remarriage Act of 1856 had no application (2).

See also A. I. R. 1935 Lah. 812=156 I. C. 447 and notes under Chapter on ‘Alienation’ for mother’s right to alienate property.

(29) Co-widows – succeed jointly.

It has been firmly established, as noted above, that a mother does not succeed as such, but as the widow of her husband, i.e., of her son’s father whom she would have succeeded if there had been no son to stop or postpone her succession. The word “mother” means “widow of the deceased’s father’” In Sunder Singh v. Mst. Jawala Devi (3), in which the parties were Jats of Village Barianwala in Tahsil Nankana Sahib, District Sheikhpura, it has been held that if there is any son, he succeeds to the exclusion of all his father’s widows who would be entitled to maintenance from him, and on the son’s death without issue the surviving widow or widows of his father would succeed him.

In Chuni Lal v. Mst. Attar Kaur (4) the property originally belonged to one Thakur Singh who died prior to 1915 leaving two widows Mst. Attar Kaur and Mst. Indar Kaur and a son named Chattar Singh. The last named died in 1915 and the estate of Thakur Singh was mutated in favour of the two widows jointly. The insolvent Teja Singh, a cousin and reversioner of Thakur Singh, married his wodow Mst. Attar Kauron 30th November 1915. Two days prior to this marriage, Teja Singh executed an agreement whereunder he abandoned his reversionary rights in the estate of Thakur Singh in consideration of his marriage with Mst. Attar Kaur, Mst. Indar Kaur, the other widow having died on 22nd December 1926 the whole property devolved by survivorship on Mst. Attar Kaur who was shown as the owner and in possession in the revenue papers. On the Official Reciever proceeding against the property Mst. Attar Kaur preferred an objection and the Insolvency Court upheld the objection on the ground that Mst. Attar Kaur having married the brother of her deceased husband (which he was not) had not forfeited her life-estate. The agreement mentioned above was also relied on as depriving Teja Singh of his reversionary right. On appeal by the Official Receiver the District Judge affirmed the order of the Insolvency Court but on somewhat different grounds. On second Appeal, held –“The learned District Judge on the authority of A. I. R. 1929 Lah. 327, held that where a widow after re-marriage continues in possession of her deceased husband’s land and is entered in the revenue papers as in possession thereof, she acquires by adverse possession absolute title to the widow’s estate. Consequently as the proceedings against Mst. Attar Kaur commenced more than 12 years after her re-marriage, she had acquired adverse possession of the widow’s estate against Teja Singh and the Official Receiver who now represents him. The correctness of this view is however open to doubt as it seems to overlook the fact that in the presence of the other widow Mst. Inder Kaur the forfeiture arising out of the re-marriage of Mst. Attur Kaur could not affect the reversionary rights of Teja Singh. The whole estate of Thakur Singh passed to Mst. Inder Kaur and the mere retention of Mst. Attur Kaur’s name in the revenue records would not place her in adverse possession of her share qua the co-widow and owing to her intervening between the estate and the reversioner the latter’s rights would not in my judgment be affected. Assuming however that Mst. Attar Kaur for the reasons stated remained in adverse possession of her share qua both Mst. Inder Kaur and Teja Singh, I fail to see how this possession can extend to the share of Mst. Inder Kaur who as mentioned above only died in 1926. The conclusion reached by the learned District Judge as to Mst. Attar Kaur being entitled to retian this share is in my opinion wrong.”

-Per Tapp, J.

(30). Step-mother – right of the mother to succeed in the presence of a son of her deceased husband from another wife.

If there be another son of the mother’s husband from another wife, she will not ordinarily succeed to her life-estate but is entitled to maintenance only. A mother is not entitled to share on the death of her son if another son survives. So where there are two widows, each with one son, the mother of one dying does not succeed to him in presence of the other son though she is entitled to maintenance. The mother really succeeds on account of maintenance as widow of the deceased’s father (1).

In C. A. 341 of 1880 in which the parties were the Moghals of Rawalpindi District, the right of a mother to succeed to her son’s share, having died during minority, in the deceased husband’s estate, in the presence of a son by another wife was raised. It was subsequently ascertained on demand that in such a case the step-mother was only entitled by local custom to maintenance. Neither under Hindu Law, nor by custom is a Hindu step-mother entitled to succeed. The burden of proving a special custom in favour of the succession of a step-mother is on the party asserting its existence (2).

Special custom.

A. I. R.1924 Lah. 556 –Among Gujars of Jhelum District a step-mother is entitled

=5 Lah. 274 to succeed equally with a son.

1921, 61 I. C. 893 –Similar is the case with Jats of Rays Tahsil, Sialkot District.

43 P. R. 1919–Hindu Jats of the Ludhiana District. A widowed mother is entitled to succeed to the estate of her childless son in the presence of a son by another wife.

A. I. R. 1931 Lah. 677–Bukhari Sayyads, Jhang District. According to the Riwaj- =15 Lah. 563 i-am of the Jhang District, among all tribes, a stepmother is entitled to succeed to the property of her step-son.

A. I. R. 1932 Lah. 222 – Bhatti Rajputs of Batala, Gurdaspur District. “A step =13 Lah. 410 mother is generally an heir in this district, though with a limited estate, along with her step sons,”– per Addison, J. (13 Lah. 410, p. 426)

21 P. W. R. 1911 – Muhammadan Rajputs, Hoshiarpur District. Step-mother allowed to succeed to a half share in ancestral land in lieu of maintenance for life.

23 P. R. 1913 –Under the Customary Law of the Mianwali District,l the plaintiff as a sister of the last male holder, was excluded by the deceased’s mother and step-mother.

85 P. R. 1912 – Muhammadan Gujars of Tahsil Ludhiana. No special custom proved by which a childless widow was entitled to succeed to the property of her deceased husband equally with her step-son.

1916, 38 I. C. 597 –Kharadis of Jullundur city. They are in matters of succession and maintenance of widows governed by the custom of agricultural tribes, and not by the Muhammadan Law. A step-son is, therefore, bound to maintain his widowed step-mother out of the income of his deceased father’s estate.

Maintenance.

In Gur Dial Singh v. Tej Kaur (1) one K died leaving a son by a predeceased wife, a widow and two sons by her. The properties were divided according to the chundavand rule but no provision was made for the widow. She sued her husband’s son for maintenance. It was held that the defendants were liable for plaintiff’s maintenance in the proportion in which they divided the estate among themselves. It was observed in that case that among parties governed by customary law, if on a particular matter no definite rule of custom is proved, the parties are entitled to fall back on their personal law. If the personal law also does not contain any definite rule applicable to the case, it must be divided according to equity, justice and good conscience.

(31). Grand-mother.

171 P. R. 1888 – Muhammadan Dogras. Hissar District. Where a man was succeeded by his minor son who subsequently died while still a minor without issue, it was held that his grandmother, who would have succeeded her husband if he had died without issue, was entitled to succeed in preference to the boy’s grand-uncle. This decision was based on the general principle governing succession to an estate amongst agriculturists, that where the male line of descendants dies out it is treated as never having existed, so that succession is then reckoned with reference to the last male owner who died leaving descendants. Cf. No. 146 P. R. 1889, pages 500, 501; 117 P. R. 1888 at p. 326, and 134 P. R. 1907 [F.B.]. In the last noted case, it was observed by Clark, C. J. –(The principle that when a line dies out it is treated as if it never existed) “cannot be followed up to all its logical conclusions. If it were, absurd results would follow; a paternal aunt and a grand paternal aunt would in this case be in the same position as daughters. A principle that would lead to such absurd conclusions cannot be a sound principle to follow to its ultimate conclusions”. These observations related to laying down a distinction between claims of sisters and daughters.

54 P. R. 1903 – Shia Sayyads of Ambala city. Personal law applied. No custom proved to exist among them under which collaterals of the 5th degree could exclude a grandmother succeeding her grandson.

See also 1934, 157 I. C. 950 as to grand-mother’s right to succeed.

23. Daughters versus Collaterals.

(1) A daughter only succeeds to the ancestral landed property of her father, if an agriculturist, in default-

(i) of the heirs mentioned in the preceding paragraph ; and

Married daughter.

(ii) of near male collaterals of her father, provided that a married daughter sometimes excludes near male collaterals, especially amongst Muhammadan tribes :-

(a) where she has married a near collateral descended from the same common ancestor as her father ; or

(b) where she has, with her husband, continuously lived with her father since her marriage, looking after his domestic wants, and assisting him in the management of his estate ; or

(c) where, being married to a collateral of the father’s family, she has been appointed by her father as his heir.

Daughter’s son.

A daughter’s son is not recognized as an heir of his maternal grandfather, except in succession to his mother.

Acquired property.

(2) But in regard to the acquired property of her father, the daughter is preferred to collaterals.

Hon'ble Revenue Minister

Hon'ble Minister-In-Charge
Shri. Gurpreet Singh Kangar

 


 

Special Chief Secretary, Department of Revenue, Rehabilitation and Disaster Mangement
Shri. Karan Bir Singh Sidhu, IAS

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